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May 31, 2013

State appeals court agrees California officials have blundered efforts to resume executions

Execution-tableAs reported in this local article, headlined "California's death penalty on hold again," another California court has ruled that the state has failed to act appropriately in efforts to get its execution protocol in order.  Here are the basics of the latest ruling and related California execution protocol developments:

California's death penalty system remains in limbo for the foreseeable future, a state appeals court on Thursday scrapped the state's latest attempt to update its lethal injection procedures.  In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago.  [This ruling can be accessed at this link.]

The unanimous decision of the three-justice panel sends California back to the drawing board, unless the Brown administration takes the case to the California Supreme Court and keeps more than 700 Death Row inmates on an indefinite reprieve.   The appeals court upheld a Marin County judge, who faulted the prison department for a variety of procedural missteps, including offering no public explanation for why San Quentin officials opted to continue with a three-drug lethal injection method instead of a single-drug execution option being embraced by a number of other states.

State officials have indicated in court papers they are exploring the single-drug option, which involves putting condemned inmates to death with one dose of a sedative.  Ohio, Washington and Arizona are among the states that have moved to that option to short circuit legal challenges to the three-drug method....

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said the ruling was not surprising, although he disputed the court's finding that violating the administrative rules justifies halting executions.  Switching to the single-drug method should thwart further legal challenges to California's lethal injection procedures, he said.

However, even if the Brown administration moves to single-drug executions, prisons will again have to comply with the administrative procedures to institute the new method, a process that can take more than a year. And states across the country, including California, are struggling to assemble supplies of execution drugs because of resistance from drug manufacturers and other problems.

California has had a moratorium on executions since 2006 as a result of legal challenges to its execution procedures in both the state and federal courts.  Death Row has more than 725 inmates awaiting execution, including more than a dozen who have exhausted their legal appeals and would be eligible for immediate execution. Several of those inmates have mounted the lethal-injection court challenges.

In response to a federal judge's concerns, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown have both tried to overhaul the state's lethal injections, revising training for execution team members and building a new execution facility at San Quentin.  But the state's updates have been blocked twice for violating the administrative code, for the most part by failing to offer adequate public review of the proposed changes.

As highlighted in this prior post, there has been talk in California for more than three years about moving to a one-drug lethal injection protocol. I believe that talk has not turned into action in large part because there seem to be very few officials in California who are truly eager to move the state closer to being able to resume executions. 

I am certain death penalty advocates will justifiably assail the foot-dragging we keep seeing from California officials concerning efforts to resume executions in the state.  But I am also certain that fiscal conservatives could be praising the disaffinity of state officials to seek to resume executions.  Because of the flurry of litigation in both state and federal court which every pending execution necessarily generates, Gov. Brown and other executive officials are probably saving the California taxpayers some money by letting condemned prisoners rot on the state's death row rather than trying aggressively to get the long line toward the execution chamber moving again.

A few older related posts about the litigation over lethal injection in California:

May 31, 2013 at 07:12 AM | Permalink


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Folks who favor the death penalty, take heart. Nature will give you the ultimate victory. I'm informed that since 1978 when California reinstated capital punishment, 58 death row inmates have died from natural causes and 22 have committed suicide. Slow but sure--and much cheaper.

Posted by: Dave | May 31, 2013 1:06:52 PM

Dave --

I wouldn't be so sure it's cheaper. Since, according to one district judge, the states are now required to pay for prisoner sex change operations (I'm not making this up -- Doug blogged about it), the custodial, medical and special needs expenses (see posts from Prof. Johnston) of lifers are going to be astronomical. Plus, if the DP is eliminated, those campaigning against it now, and causing so much of the litigation cost, will simply turn their sights on LWOP, which many of them already denounce as simply a slow-motion DP.

Posted by: Bill Otis | May 31, 2013 1:53:11 PM

Assuming the artwork accompanying this post is Doug's own handiwork I would strongly advise against a career change such as that undertaken by George W. Bush. You'd starve Doug.

Posted by: Daniel | May 31, 2013 4:14:34 PM

What are the odds on there being no executions for the entire duration of the Moon-Beam Administration?

Posted by: Jeff Aldridge | May 31, 2013 6:27:42 PM

"But I am also certain that fiscal conservatives could be praising the disaffinity of state officials to seek to resume executions."

A tendentious statement with bad syntax--nice work Doug. Being certain about someone could do is a mind-bending concept . . . .

In any event, the statement ignores the concept of sunk costs and also the lost opportunity costs associated with not executing someone.

Plus, it presupposes that a "fiscal conservative" values illusory cost savings over all else.

Posted by: federalist | May 31, 2013 8:53:19 PM

I am sure that you are usually probably correct, always.

Posted by: Adamakis | May 31, 2013 10:45:33 PM

Ha ha, Adamakis.

Posted by: federalist | May 31, 2013 11:01:09 PM

Put more clearly by Scranton's finest,
Joe Biden:

"My mother believed and my father believed that if I wanted to be president of the United States, I could be, I could be Vice President!"
— {campaigning in Youngstown, Ohio, May 16, 2012}-

Posted by: Adamakis | May 31, 2013 11:01:59 PM

You are absolutely probably right, federalist, that my purple prose surely could have perhaps been aided by the possibility of an editor who definitely might have considered suggesting different phrasing for my point.

On the merits, though, I am not sure your assessment of sunk and opportunity costs are right. My (educated?) guess is that California would be forced to invest at least 2000 lawyer/judge/court hours dealing with last-minute pre-execution appeals in state and federal courts in weeks before any serious execution date. (This is a conservative estimate based on the notion that only 10 persons on average are spending only 20 hours/week on these issues over 10 weeks prior to an execution date; both prosecutors and the defenders are likely have at least 3-4 lawyers on these matters in the run up to a serious execution date, and the courts and gov likely have many more.)

These are all new costs, not sunk ones, and an opportunity cost concerns what all those lawyer/judge/courts are not getting done while they fight over whether/when a long-ago-convicted murderer will now die a few years earlier than nature kills him. Moreover, if Gov Jerry Brown at the last minute decides to grant a "temporary reprieve" following the path of Gov Hickenlooper in Colorado, all those costs are lost forever. And, as you often stress, there are considerable costs to victims and others from the tendency of blue states to be like Lucy and pull away the execution football just as some state prosecutors in the role of Charlie Brown try to kick it.

Sadly, because economists are still debating whether executions may deter homicides, there have not been any serious sophisticated studies of all the costs associated with the run up to executions in blue states without a history of executions. But my experiences in Ohio and in other DP states more similar to California than to Texas supports my belief that it can often be far cheaper to let the condemned rot in prison that to repeatedly try and fail to move an execution forward.

Meanwhile, Daniel, I am happy to report that I just found this graphic on via google images and did not produce it myself. (I would like to imagine I could do better, and I am sure my kids could.) For all I know, this is a GWB original, and maybe he will soon sue me for copyright violation. And, for the record for any legal sticklers out there, I feel confident that all my use of images and text which may have copyright protection on this blog should qualify as fair use in the Copyright Act.

Posted by: Doug B. | Jun 1, 2013 6:52:13 AM

How quickly they forget.

Cost arguments were Item No. 1 in the Prop 34 campaign that ended just seven months ago. The campaign ended with a resounding decision from California taxpayers to keep the death penalty. Since it's the taxpayers who actually have to bear the costs, they, and not Internet sites, who get to decide if those costs are more than they wish to pay.

The court ruling affirmed this last week merely continues the delay that had been in place all during the Prop 19 campaign and election. The voters knew that the California DP is quite entangled with delay and expense; the Prop 19 backers, who outspent DP supporters 20-1, made sure they knew it. But the voters decided to keep the DP anyway.

Thus, even if one assumes that cost should be the dominant factor in deciding whether to keep the DP, the news is bad. The cost hawks made their case full bore and lost. They'll have to go back to the argument that we should abandon the DP because we executing innocent people like Dzhokar Tsarnaev.


Posted by: Bill Otis | Jun 1, 2013 8:17:07 AM

Correction to my last post: I should have referred to Prop 34 throughout, not Prop 19. Prop 19 was the 2010 measure in which Californians decided to retain the ban on recreational dope.

Posted by: Bill Otis | Jun 1, 2013 8:22:09 AM

|“How quickly they forget….we should abandon the DP because we executing innocent people like Dzhokar Tsarnaev.”| {purposeful hacking/editing}

B. Otis:
Don’t YOU forget, Dzhokar’s status is higher than innocence; he has been deemed amorally non-culpable, by a compelling Euro-American feminine consensus:

Posted by: Liz McD, 4/27-29/13, sentencing law & policy.com
Addressed by: Prov 17:15
“He was highly susceptible to influence and kind of passive... he was persuaded to join this plot... his brother... I assume he [the brother] was domineering and dominant.”

“The younger Tsarnaev got involved only recently... So, I don't see him as a full partner in the planning. He wasn't a full partner in the execution either - at least the getaway part of it.”
“His thinking may have been cloudy based on his heavy marijuana use. This guy was not a casual pot smoker. He likely was an addict, or in danger of becoming one.”
_______________ _______________
“I see the younger Tsarnaev as completely misguided, lost, making choices that he has not really thought through... the younger brother was planning to dedicate his college career to smoking pot, getting laid and going to parties.”

“I would definitely use his age as part of his defense... Then, I would use the testimonials of his friends and former teachers and coaches, who all have said that he was the greatest guy and wouldn't hurt a fly.”
“[Y]ou have a case of a guy who was good and then went bad very suddenly. I think he could become good again. I believe in redemption... I think his victims would be okay with him being released and monitored.”
_______________ _______________
“There is a lot of horrific stuff going on in the world, including actions by our own government...

Drones don't just kill the bad guys.”
“Dzhokhar was not really a practicing Muslim. I'm not sure how much he was involved in the planning of this attack.”
_______________ _______________
“I seriously think he was trying to pretend it never happened...People who knew him who saw him at the gym said he looked "down" or "tired." So, he may have been feeling bad about what he did already.”

“Dzhokhar has a lot of sympathy among women, and might with other people as well...
I can't see into Dzhokhar's heart, but the wrestling coach's statements were meaningful to me...Check out this article about maternal sympathy for Dzhokhar:..”
_______________ _______________
“I think my rehabilitation idea makes sense … With some countries…other countries are willing to take this chance...Many European countries…for people Tsarnaev's age...”

“Life without parole may be a terrible punishment for him...what kind of life will it be? for this young man.”

Posted by: Adamakis | Jun 1, 2013 12:27:12 PM

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